0120091618
08-05-2009
Marlene R. Rivero, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Marlene R. Rivero,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120091618
Agency No. FS-2004-00802
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's January 21, 2009 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
During the period at issue, complainant was employed as a Realty Specialist, GS-1170-9, at the agency's Forestry Service, Shawnee National Forest, Jonesboro/Murphysboro Ranger District in Jonesboro, Illinois.
On September 22, 2004, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against her on the bases of race (African-American), sex (female), disability (diabetes, stress and panic disorder), age (over 40), and in reprisal for prior EEO activity when:
1. on January 8, 2004, her supervisor kicked, slapped or swatted her;
2. her supervisor, prior to and after becoming complainant's supervisor, made derogatory statements regarding her time and attendance and work ethic;
3. she was assigned duties outside her position description;
4. on June 22, 2004, she was denied the opportunity to participate in the Lewis & Clark Expedition;
5. on May 3, 2004, her request for a reasonable accommodation was denied;
6. the agency is attempting to coerce her into retiring or resigning as a result of the foregoing; and
7. on March 25, 2004, she was not selected for the position of Supervisory Biological Scientist (Recreation Assistant Ranger), GS-401-11.1
At the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with complainant's request, the agency issued a final decision on September 26, 2008, pursuant to 29 C.F.R. � 1614.110(b).
In its September 26, 2008 final decision, the agency found no discrimination. Specifically, the agency found that in regard to claims 1 - 6, complainant did not establish a prima facie case of race, sex, disability, age and reprisal discrimination. The agency nevertheless found that management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext for discrimination.
Regarding claim 7, the agency found that complainant established a prima facie case of sex and age discrimination when the selectee (a younger male) was selected for the position of Supervisory Biological Scientist. The agency found, however, that management articulated legitimate, nondiscriminatory reasons for complainant's non-selection which complainant did not show were a pretext.
Regarding the harassment claim, the agency found that the evidence in the record did not establish that complainant was subjected to harassment based on race, sex, disability, age or retaliation. Specifically, the agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
Regarding claim 1, complainant's immediate supervisor (S1) stated that she has no recollection of the January 8, 2004 incident. S1 stated that during mediation, complainant "brought up the incident. I stated that I did not remember the incident and that I cannot imagine that I would have kicked or swatted [complainant]. However, I stated that if I did anything to offend [complainant] that I was very sorry and would never have done anything or said anything to intentionally hurt her." S1 stated "prior to my becoming [complainant's] supervisor, I felt like we had a comfortable working relationship which included some humor and joking."
Complainant's second-level supervisor (S2) stated "I know nothing directly about the alleged incident. I do know that it was investigated by an independent non-government agency contractor and the allegations were unfounded. [Complainant] was informed of this decision." S2 further stated that S1 "likes to joke around a lot and has a very playful and personable personality, and that [complainant] also has a fun and cheerful side." S2 stated that he did not feel that complainant was affected by the alleged incident "otherwise she should have brought it to my attention as soon as it happened which would have been long before the two months that had passed by. She never discussed this matter with her supervisor, me or anyone in my chain of command, before going to the Forest Supervisor."
Regarding claim 2, S1 stated that she does not recall "any specific incidents. But, I vaguely remember [complainant's] previous supervisor coming to me for advice on getting her to be more responsible by coming to work on time, coming to meetings on time, and attending district meetings that all employees were expected to attend." S1 stated that prior to her becoming complainant's supervisor, she and complainant "had a respectful, amicable and even friendly relationship. Since the time [complainant] learned I was to become her immediate supervisor, she has made negative, exaggerated, and/or untrue statements about me to my supervisor and other individuals at the forest and regional level...I have sincerely attempted to establish and maintain a positive working relationship with [complainant]."
S2 stated that he has no knowledge that S1, prior to and after becoming complainant's supervisor, made derogatory statements regarding complainant's time and attendance and work ethic.
Regarding claim 3, S1 stated that complainant was not assigned duties outside her position description. S1 stated that complainant was assigned right-of-way duties because "it is her job." Specifically, S1 stated that complainant was assigned "trails related work involving a right-of-way issue. I have no knowledge of [complainant] working well past 6:00 p.m. I did not require [complainant] to work late hours." S1 stated that requests for use of the National Forest System lands and projects involving right-of-way issues "are clearly within [complainant's] duties;" and that it was part of her position description.
S2 denied complainant's allegation that she was assigned duties outside her position description. S2 stated that S1 asked complainant "to assist with the determination of a trail construction/easement request that was submitted by a local school teacher." S2 further stated that complainant's position description "clearly states 'negotiates terms and conditions for rights-of-way easements and grants to ensure compliance with agency standards, regulations and policies.' It is well within [S1's] prerogative to ask [Complainant] to assist her on that project."
Regarding claim 4, S2 stated that he denied complainant participation in the Lewis and Clark expedition "due in part because of [complainant's] own request." Specifically, S2 stated that on March 31, 2004, complainant sent him a letter stating that she was "being medically treated for stress and anxiety." S2 stated that as a manager, it was his obligation "to consider such information and if at all possible to reduce the level of stress and one way to do so is to lessen her workload so that she can focus solely on her Special Uses program of work. In my opinion, by allowing [complainant] the participate in that event, at that time, would have only added to her stress level in the form of being even further behind in her regular program of work, upon her return. We have a serious backlog of Special Uses renewal/updates and every time [complainant] is absent, she falls further behind and this can only add to her levels of stress and anxiety." S2 stated that during the relevant time, S1 was on vacation and had assigned complainant as her "acting." S2 also stated that complainant was working on a deadline associated with the processing Outfitter/guide applications and Operations Plans and that the Shawnee National Forest "was under a court order to have a number of applications processed and mailed out. Because of this I could not approve her request." Moreover, S2 stated that he approved complainant's request to participate in the July 31-August 3, 2004 Lewis and Clark expedition.
Regarding claim 5, the record reflects that complainant requested a reasonable accommodation for a change in supervision. S1 stated that complainant's request for a reasonable accommodation was denied because "her claimed disability is not a 'defined' disability." S1 stated that according to the National Program Manager (M1) for Persons with Disabilities, even if complainant "had a qualifying disability, change in supervisor would not be a reasonable accommodation."
S2 stated that he noted in M1's email to complainant, M1 stated that he denied complainant's request for a change in supervision because "changing of supervisors is not a valid Reasonable Accommodation and it is not allowed under any circumstances under Reasonable Accommodation Procedure according to the Equal Employment Opportunity Commission (EEOC)."
Regarding claim 6, S1 and S2 denied that efforts were being made to coerce complainant into retiring or resigning from agency employment. S2 stated that there is a long history between S1 and complainant, and that "it is affecting [complainant] being able to work with [S1] in a constructive way. At the time of the complaint, [S1] had only supervised [complainant] for about four months and in my opinion had not exhibited any of the hostility that [complainant] states. [S1] is one of the most positive and caring employees that I have. She is willing to bend over backwards to make her working relationship with [complainant] successful."
Regarding claim 7, the selecting official (SO) for the position of Supervisory Biological Scientist (Recreation Assistant Ranger), GS-11, stated that the District Ranger (DR) implemented a panel of three panelists to review the candidates' application packages and interview the candidates. SO further stated that the panel members individually evaluated the candidates and "based on experience and qualifications narrowed the field to six candidates. [Complainant] was included in this group. Based on this information and his own analysis, [DR} narrowed the field of six to three. [Complainant] was included in this group." SO stated that after he received the recommended list of three candidates from DR, he selected the selectee for the subject position. Specifically, SO determined the selectee's work experience "was superior to all candidates and would better meet the needs of the position, not only [complainant's work experience]."
Further, SO stated that he found the selectee's experience with wetlands restoration and other ecologically sensitive areas "provides him with the experience to manage projects and issues that will occur on similar sites/projects on the District where he is now employed i.e. dealing or managing both riparian issues as well as other ecologically sensitive resources. His experience, in my determination, gives him an appreciation for the sensitive nature of some of the resources we are called on to manage and protect either through avoidance, mitigation measures, or project design."
DR stated that after receiving a list of the top candidates from the panel, he made a recommendation to the SO that the selectee should be selected for the subject position because he was better qualified than complainant. DR stated that his recommendation was based "more on leadership skills, supervisory skills, coordination and ability to handle multiple projects simultaneously, skills and experience in working with contractors, recreation program knowledge, and communication skills." DR stated that the selectee's references "were very strong. One of his supervisors, when I questioned him, said he absolutely hated to lose him. This was not from his current job, but from a previous job. He also said that he was motivated, a self-starter, liked to do a good quality job, had pretty strong leadership and supervisory skills, and had experience handling multiple tasks simultaneously on different levels." DR further stated that one of complainant's references stated that complainant "had a lack of work ethic and issues with timeliness. [Named reference person], who is now retired, also talked about [Complainant's] lack of effort and lack of desire to put forth the extra effort." DR stated that one of complainant's references talked about how complainant "was short with employees, which I took as not getting along well with others. [Complainant] did not appear to have a lot of good supervisory qualities."
One of the three panelists (P1) stated that the purpose of the panel was "to narrow the field of the best qualified candidates to those candidates that were most qualified and for those deemed to be most qualified, to document the findings regarding strong points through interviews and reference checks." P1 further stated that there were nine candidates on the best qualified list, and the panel narrowed the list to four candidates, including complainant. P1 stated that the panel did not make recommendations but prior to the selection, DR called him and asked questions about the selectee "as well as the other candidates. Therefore, I assume he made the recommendation." P1 stated that complainant's interview was "acceptable, but not outstanding." P1 stated that when the panel contacted complainant to conduct an interview, complainant did not have private space and "the interview was conducted in an open 'bull pen' area.' There were a few interruptions during the 20 to 25 minute interview, during which, I felt, [complainant] lost her 'train of thought' in responding to some of the questions. All of the other candidates that were interviewed, seemed to have private space and their interviews were conducted without interruption."
P1 stated that complainant had more experience, awards and knowledge of the Forest Service "having worked for the Forest Service over 20 years. The Selectee had never worked for the Forest Service or USDA, but had worked for other federal agencies." P1 stated, however, the selectee had more experience in the management of trails "which is a big part of the job. The Selectee also had extensive supervisory experience. [Complainant] did not have experience supervising other GS employees. The Selectee had extensive experience in the writing of NEPA documents, while [complainant's] experience in this area was more limited."
Disparate Treatment
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant has not demonstrated that these reasons were a pretext for discrimination.
Harassment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 01970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
In the instant case, we find that the incidents complained of, even if true, do not rise to the level of a hostile work environment.
Reasonable Accommodation
Complainant asserted that she was discrimination against based on her disability (diabetes, stress and panic disorder) when her reasonable accommodation request to be transferred to a different supervisor was denied. The record reflects that in May 2004, complainant received an e-mail from M1 for Persons with Disabilities stating that her request for a change in supervision was denied because her alleged disability "is not a 'defined' disability." After reviewing this claim in context, it appears that complainant is asserting that the agency failed to reasonably accommodate her by not transferring her to a different supervisor. Therefore, we will analyze this claim as an allegation of a failure to reasonably accommodate.
Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause undue hardship. 29 C.F.R. � 1630. Reasonable accommodation includes modifications to the manner in which a position is customarily performed in order to enable a qualified individual with a disability to perform the essential job functions. Enforcement Guidance - Reasonable Accommodation. The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. 1630. In order to establish that complainant was denied a reasonable accommodation, complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) she is a qualified individual with a disability pursuant to 29 C.F.R. � 1630.2(m); and (3) the agency failed to provide a reasonable accommodation absent undue hardship. See Enforcement Guidance; Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, Notice No. 915.002 ( as revised October 17, 2002).
For purposes of analysis only, and without so finding, we assume arguendo that complainant is a qualified individual with a disability. As discussed in the Commission's Enforcement Guidance and Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act, EEOC No. 015.002 (March 1, 1999), 'An employer does not have to provide an employee with a new supervisor as a form of reasonable accommodation . . . [but] the ADA [Americans with Disabilities Act] may require that supervisory methods may be altered as a from of reasonable accommodation.' Id. at 46. Therefore, the agency would not have been obligated to provide complainant with a new supervisor as a reasonable accommodation.
On appeal, complainant provides a seven-age statement that, in essence asserts that she has demonstrated patterns of discrimination over a period of time "for prohibited unfair labor practices, reprisal, harassment, abusive/hostile work environment that occurred through my unfortunate ordeal experienced since reporting these appealed issues.2 After a review of complainant's arguments, however, the Commission has determined that on appeal, complainant has not provided any persuasive argument regarding the propriety of the agency's finding of no discrimination. .
In conclusion, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final decision because the preponderance of the record evidence does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this case if the complainant or the agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 5, 2009
__________________
Date
1 The record reflects that claim 7 was later amended to the instant complaint.
2 The Commission notes at one point in her appellate brief, complainant argues that a nexus exists among claims 7, 3, and 2. However, in conclusion, complainant asserts that she "dropped issue 3." The Commission has nonetheless addressed claim 3 on the merits.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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